My Lords, I want to go through in some detail what has led me to table the Motion and why I think an explanation from the Government is required. It relates to the findings in two reports: the 14th and 17th reports of the Secondary Legislation Scrutiny Committee. I am not sure that the Motion can be regarded as a surprise. To put it in context, the Home Office is something of a regular offender when it comes to getting on the wrong side of the committee. In its final report of the previous Session, it included a section on the annual work of the committee. Paragraph 36 stated that as a result of the number of deficient Explanatory Memoranda, a new ground for reporting an instrument had been introduced at the beginning of the 2014-15 Session:
“the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation”.
The paragraph concluded:
“There are, however, still far too many EMs that use obscure jargon or tell us what the instrument does without giving us sufficient context to judge whether the change is significant or appropriate. The Home Office, Defra, DWP and the Ministry of Justice have been particular offenders in this session”.
The Home Office provided two of the 13 instruments reported for inadequate information last Session: the statement of changes in immigration rules and the Asylum Support (Amendment No. 3) Regulations 2015. The regulations which are the subject of my regret Motion are apparently one of only two instruments reported on the ground of insufficient information so far this year. I am advised by the Committee Office that the Secondary Legislation Scrutiny Committee does not report in this way to the House when there are just minor glitches. It is done only, as with these regulations, when the missing material is vital to a proper understanding of the policy.
So what are the issues raised by the committee? First, Schedule 1 sets out for the first time a non-exhaustive list of the “fundamental interests of society” which a court or tribunal must have regard to when considering restricting the right of EU citizens and their families to move and reside freely within the territory of the member states. The committee states:
“We are surprised that so significant a change should be implemented by a negative instrument, and also that it was undertaken without any prior consultation”.
Paragraph 8 of the Government’s Explanatory Memorandum, on consultation, asserts:
“The 2016 Regulations in large part consolidate and clarify the provisions under the 2006 Regulations, modernising the language used and simplifying terms where possible in line with current drafting practice. Therefore, no external consultation has been undertaken”.
That would be a convincing explanation of the need for no external consultation, but for the reality that what it says about the regulations is questionable, and clearly did not convince the Secondary Legislation Committee.
I move on to the other issues raised by the committee. In a letter to the Minister of State for Immigration at the Home Office, the chairman of the committee, on the committee’s behalf, stated that it had,
“significant concern about the open-ended character of some provisions in the Regulations and whether they could be interpreted consistently and objectively”.
In that context, the chairman referred specifically to,
“the decision as to whether the residence of a British citizen and another family member in an EEA state is ‘genuine’ (regulation 9); and ‘preventing social harm’ or ‘protecting public services’ under Schedule 1”.
Paragraph 9 of the Explanatory Memorandum states that the Home Office will be issuing guidance. In his letter to the Minister, the chairman of the committee asked the Minister to,
“tell us how the guidance will support understanding of these and other similarly broad expressions contained in the Regulations”.
The chairman went on to say:
“We would also be grateful if you could send us a copy of the guidance with your response and confirm that it will be available to Parliament without delay so that it can be taken into account should these Regulations be debated”.
There was also a reference in the letter to the fact that, under subparagraph 7(h) of Schedule 1 to the regulations,
“numerous lesser offences can be aggregated”.
The committee chairman added that,
“we would welcome clarification about what sort of offences are intended and how many will qualify a person for removal”.
In his reply, the Minister, Robert Goodwill MP, referring to the use of the word “genuine”, said:
“Guidance will set out how caseworkers should approach the ‘genuine residence’ question and the other conditions of regulation 9. The guidance will be published on Gov.uk on 25 November when the changes to regulation 9 come into force. We will notify the Committee when it is available”.
On the references to the wording in Schedule 1, such as “preventing social harm” and “protecting public services”, the Minister said in his response:
“The Regulations need to be able to relate to a broad and varied array of circumstances in which an individual may pose a threat and so it is inevitable that some of the provisions are somewhat general in nature”.
Under the offences referred to under subparagraph 7(h) of Schedule 1, the Minister said:
“There is … no prescribed list of the offences that will fall under subparagraph 7(h) of Schedule 1, nor is there a threshold to the number of offences that must be committed in order to qualify a person for a decision to be made on the grounds of public policy or public security”.
The Minister went on to say:
“These Regulations will be accompanied by guidance to assist with the interpretation of the provisions. This will provide more detail on the sorts of circumstances which could be considered when making a decision on the grounds of public policy and public security. The guidance will be published on Gov.uk on 1 February when the provisions come into force. We will notify the Committee when it is available”.
Not surprisingly, the committee was unimpressed with the Minister’s response. It said in its 14th report, published on 17 November, that the Home Office guidance to accompany the regulations had not been available to it for its,
“initial scrutiny and nor was a draft”.
It referred to the fact that it had written to the Minister about this and that his reply,
“simply refers us to the guidance which, we note with disappointment, will not be published until the very day the legislation comes into effect”.
The committee went on to say in its report:
“We reiterate our strongly held view that if guidance is intended to direct users on how specific terms should be interpreted or how decisions should be made, it should be laid with the instrument
and be available to Parliament throughout the scrutiny process. It would be even better if such definitions were clearly set out on the face of the instrument”.
The committee wrote again to the Minister, Mr Goodwill MP, on 16 November. In its 17th report, published on 8 December—that is, just a few days ago—it said:
“The Minister’s reply of 24 November was again unsatisfactory. He was invited to provide a fuller response which he did in a letter dated 5 December”.
That was the Minister’s third attempt at a letter. The committee continued:
“Although this second response goes some way towards addressing the points we originally raised, it fails to deal with the Committee’s core concern that such open definitions may be inconsistently applied in different parts of the country and result in injustice for individuals”.
The committee’s report goes on to say:
“This instrument exemplifies our more general concern that guidance is being used to supplement secondary legislation with material that should have been included in the legislation itself. In this case, the Home Office has told us that the relevant guidance will not be published until February 2017 when the legislation comes into effect. Our concern about the late availability of the guidance, which we expressed in our 14th Report, has since been aggravated by the publication by the Home Office of guidance in relation to determining the ‘genuineness’ of a marriage (which forms another part of the same instrument) which includes a number of redacted sections which are ‘for Home Office use only’. We question how the courts and individuals can assess their position correctly if a number of the determining factors are kept from them”.
I have a page from the guidance to which the committee is referring. It is page 35 of 44, published for Home Office staff on 25 November 2016. At the top of the page it says:
“Official—sensitive: start of section. The information on this page has been removed as it is for internal Home Office use only”.
Then, right at the foot of that page, the same text appears again. It is no wonder that the committee chose to draw attention to that state of affairs. The report goes on:
“The Minister’s letter of 5 December provides some information about the meaning of ‘protecting public services’ in that he says the expression ‘could be interpreted as benefit fraud or tax evasion, though these examples are not exhaustive’. He fails entirely, however, to address our concern that the term could also be interpreted in a number of less obvious ways, creating a problem for the courts and potential inequality among individual cases. It would, in our view, be more appropriate for such definitions to be fully set out in the Regulations; and, if not, then, as we said in our 14th Report, the relevant guidance should be laid with the Regulations and be available to Parliament throughout the scrutiny process. This is not a new concern, in relation to the Draft Social Security (Personal Independence Payment) Regulations 2013, for example, we said, when ‘guidance is so material to the House’s understanding of how the system will operate for individuals, rather than on a theoretical level … proper scrutiny is not possible if the guidance is not published’”.
5.45 pm
I appreciate that we are talking about a report from a House of Lords committee, so it may be that a Commons Home Office Minister does not attach as much importance to its views as he should. I hope that the noble Baroness would adopt a rather different approach. The House of Lords Secondary Legislation Scrutiny Committee has far more experience and expertise in commenting with authority on what does and does
not constitute good practice in secondary legislation than any House of Commons Minister whose experience is limited to their own department’s culture in this regard and not to the much wider picture.
The committee is also a cross-party committee, chaired, I believe, by one of the Minister’s noble friends. It is hardly likely to express itself so firmly and clearly for the purpose of making mischief. The committee acts on behalf of this House and its work is valued and appreciated. It took three letters from the Minister and a meeting with the Secondary Legislation Scrutiny Committee chairman, I understand, before a reply was received that even went some way to,
“addressing the points we originally raised”,
but still failed, in the committee’s words,
“to deal with the Committee’s core concern”.
To ignore the reports of the committee is to ignore this House. It is also clear that this is by no means the first time that the Home Office has incurred the metaphorical wrath of the committee. Indeed, I think in one of his letters to the Minister of State for Immigration at the Home Office, the chairman of the committee also referred to two other recent Home Office instruments that had caused the committee concern for similar reasons. Therefore, why could not the definitions in question have been fully set out in the regulations? If there is a credible reason for that—I wait to see whether there is—why could not the relevant guidance have been laid with the regulations and been available to Parliament throughout the scrutiny process? Why could not a Government who say that they want to be open and transparent have done that? Why have such significant changes been implemented by a negative instrument in respect of which there was no consultation and no guidelines even made available with the regulations or made available throughout the scrutiny process?
Will the further guidance the Government intend to delay until February, when the relevant provisions come into force, now be published well before then in the light of the Secondary Legislation Scrutiny Committee’s comments, and if not, why not? Surely, on reflection, the Minister would agree that this statutory instrument should have been dealt with through the affirmative process and not in the way that it was.
Finally, what is the procedure adopted by the Home Office when faced with these two critical reports from the committee—namely, the 14th and 17th reports? At what level have the committee’s findings been considered, or will be considered, in the Home Office, and who has responsibility in the Home Office for ensuring that this is the last such report of this kind which the Secondary Legislation Scrutiny Committee feels it has no choice but to issue in relation to a Home Office statutory instrument? This issue of making the appropriate information available, and of issuing guidance so that that guidance can be scrutinised by Parliament if there is an unwillingness to put the information into the regulations, affects the ability of Parliament to call the Government to account. That, in a sense, is what is at stake, and what the Home Office has sought to avoid through what it has done in relation to these regulations. I hope the Minister will be able to give satisfactory responses to the questions I have raised. After I have heard her reply, I hope I will not be left with the feeling
that the Home Office’s position is that the committee can say whatever it likes, but the way the Home Office carries on will continue unchanged.